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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION April 19, 2016 9:10 a.m.

v No. 325144 Genesee Circuit Court TRAVIS JAMES HENRY, LC No. 13-033028-FC

Defendant-Appellant.

Before: B ECKERING , P.J., and O WENS and K. F. K ELLY , JJ.

P ER C URIAM

. Defendant appeals as of right from his jury trial conviction f or armed robbery, MCL 750.529, for which he was sentenced as a fourth habitual offend er, MCL 769.12, to 240 to 480 months’ imprisonment. Finding no e rrors warranting reversal, w e affirm.

I. BASIC FACTS

On Sunday, March 17, 2013, defendant entered a Halo Burger in Genesee County where Jennifer Thomas was working as a shift manager and Elizabeth Mu rphy was working as a crew member in the kitchen. At approximately 11:10 a.m., defendant approached Thomas at the counter and demanded all the mone y that was in the till. Thoma s asked defendant whether he was “f***ing serious” and defendant said, “Yes, I am, don’t mov e, don’t push a button, give me all the money in your till.” Thomas observed that defendant ha d strawberry blond/reddish facial hair. He was wearing a dark blue zip-up hooded sweatshirt (hoo die) that had an insignia on the left side. Defendant’s hands were in his pockets, but the pock et was, as she described it, “bulged forward.” Thomas was able to demonstrate for the jury how defe ndant held his hands in his pockets. She was not sure whethe r defendant actually had a wea pon, but did not take any chances and turned the money over to defendant. The register h ad contained three $10 dollar bills, six $5 dollar bills, and 35 $1 dollar bills.

Murphy also indicated that she observed defendant. He had str awberry blond facial hair and had his hands in the pocket of his hoodie “bulging forward. ” Like Thomas, Murphy testified that she assumed defendant had aweapon. She activated the ala rm button after defendant left.

The prosecutor presented a witn ess who placed defendant in the area of the Halo Burger near the time of the robbery. Kuldip Singh testified that he w orked at the Shell gas station in-2- Burton and that an individual matching defendant’s description was in his store at approximately 10:45 a.m. that day. The Shell s tation maintained surveillance cameras and Singh cooperated in finding an image of the individual, which was later shown to Th omas and Murphy at the Halo Burger. Both Thomas and Murphy separately identified the man i n the surveillance photo as the robber. They also both separately (and immediately) chose defe ndant’s image from a photo array shown several days later.

An officer on patrol heard from dispatch regarding the robbery , which also included a description of the robber. The officer proceeded to a common d rug location because, from his experience, robbers tended to use the proceeds of their crimes for drugs. The officer pulled up near a maroon Grand Prix and noted that the driver’s appearance matched the description of the robber. He pulled defendant over and while defendant was looki ng for his license, insurance and registration, the officer observed “quite a bit of money on the front floorboard under the driver’s feet . . .up towards the center console.” There was also a bl ue hooded sweatshirt in the back seat. Defendant was arrested. D efendant told officers that he lived in Fenton and that he was coming from his girlfriend’s house in Burton to his friend’s ho use around the corner. Officers found $75 under the front driver’s seat. There was one $10 dol lar bill, six $5 dollar bills, and 35 $1 dollar bills. There was a screwdriver under the hooded swea tshirt in the middle of the backseat. An officer returned to Halo Burger where Thomas conf irmed that the hoodie taken from the vehicle defendant was driving was the same hoodie the robber was wearing.

The jury was instructed as to armed robbery, unarmed robbery and larceny from a person. It convicted defendant of armed robbery. Defendant was sentenc ed as a fourth habitual offender to 240 to 480 months’ imprisonmen t. He now appeals as of right

.

II. ANALYSIS

A. SUFFICIENCY O F THE EVIDENCE

Defendant argues that there was insufficient evidence to suppo rt his conviction for armed robbery because there was no ev idence that defendant possessed a weapon or verbally indicated that he had a weapon. Defendant argues that the armed robbery statute requires that a person have a reasonable belief that the defendant was armed with a da ngerous weapon. We disagree with defendant’s interpretation.

“We review de novo a challenge on appeal to the sufficiency of the evidence.” People v Ericksen , 288 Mich App 192, 195; 793 NW2d 120 (2010). “Taking the evid ence in the light most favorable to the prosecuti on, the question on appeal is wh ether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” People v Hardiman , 466 Mich 417, 421; 646 NW2d 158 (2002). “It is for the trier of fact, not the app ellate court, to determine what inferences may be fairly drawn from the evidence and to determi ne the weight to be accorded those inferences.” Id. at 428.

“Statutory interpretation is a question of law that we review de novo.” People v Phillips
, 469 Mich 390, 394; 666 NW2d 657 (2003). The Court’s goal “in i nterpreting a statute is to ascertain and give effect to the intent of the Legislature. Th e touchstone of legislative intent is the statute’s language. If the statute’s language is clear and unambiguous, we assume that the-3- Legislature intended its plain meaning and we enforce the statu te as written.” People v Hardy
, 494 Mich 430, 439; 835 NW2d 340 (2013) (in ternal quotation mark s omitted).

MCL 750.529 provides, in pertinent part:

A person who engages in conduct proscribed under section 530 1 and who in the course of engaging in that conduc t, possesses a dangerous weapo n or an article used or fashioned in a manner t o lead any person present to rea sonably believe the article is a dangerous weapon, or who represents orally or othe rwise that he or she is in possession of a dangerous weapon, is guilty of a felony p unishable by imprisonment for life or for any term of years.

Therefore;

in order to obtain a conviction f or armed robbery, a prosecutor must prove that

(1) the defendant, in the course of committing a larceny of any money or other property that may be the subject of a larceny, used force or violence against any person who was presen t or assaulted or put the pers on in fear, and (2) the defendant, in the course of committing the larceny, either possessed a dangerous weapon, possessed an article used or fash ioned in a manner to lead any person present to reasonably believe that th e article was a dangerous weapon, or represented orally or otherwise that he or she was in possession of a dangerous weapon. [ People v Gibbs , 299 Mich App 473, 490-491; 830 NW2d 821 (2013) quoting People v Chambers, 277 Mich App 1, 7; 742 NW2d 610 (2007).]

Defendant argues that MCL 750.529 requires that the victim hav e a reasonable belief that the defendant was armed with a dangerous weapon. In so doing, defendant ignores the statute’s plain language. The clause “pos sesses a dangerous weapon or an article used or fashioned in a manner to lead any person present to reasonably believe the art icle is a dangerous weapon,”

1 MCL 750.530 provides:

(1) A person who, in the course of committing a larceny of any money or other property that may be the subject of larceny, uses force or viol ence against any person who is present, or who assaults or puts the person in fe ar, is guilty of a felony punishable by imprisonment for not more than 15 years.

(2) As used in this section, “in the course of committing a lar ceny” includes acts that occur in an attempt to commit the larceny, or during commi ssion of the larceny, or in flight or attempte d flight after the commission of the larceny, or in an attempt to retain pos session of the property.-4- requires that the defendant eith er (1) actually possess a dange rous weapon, or (2) possess some article that would lead a person to reasonably believe the arti cle is a dangerous weapon. But the following clause in the statute – “ or who represents orally or otherwise that he or she is in possession of a dangerous weapon” – does not contain the same “ reasonable relief” requirement. “The word ‘or’ is a disjunctive term” and “indicates a choice b etween two alternatives.” State v McQueen , 293 Mich App 644, 671; 811 NW2d 513 (2011) (internal citationomitted). The latter clause provides that a defendant is guilty of armed robbery if he either (1) orally represents that he has a dangerous weapon, or (2) “otherwise” represents that h e possesses a dangerous weapon. For these two alternatives, the victim’s fear or belief is irre levant. Thus, a defendant is guilty of armed robbery if he engages in conduct under MCL 750.530, and:

1. He actually possesses a dangerous weapon, or

2. He possesses some article that would lead a person to reasonabl y believe that the article is a dangerous weapon, or

3. He orally represents that he possesses a dangerous weapon, or

4. He otherwise represents that he possesses a da ngerous weapon.

Defendant cites People v Saenz , 411 Mich 454, 455; 307 NW2d 675 (1981), People v Jolly , 442 Mich 458; 502 NW2d 177 (1993), and People v Johnson , 206 Mich App 122; 520 NW2d 672 (1994), but these cases all applied the old armed robb ery statute, which provided:

Any person who shall assault anot her, and shall feloniously rob , steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerou s weapon, or any article used or fashioned in a manner to lead the person so ass aulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felon y.
The 2004 amendment changed the statute significantly. Thus, wh ereas the old statute required that the robber be either armed with a dangerous weapon or poss ess some article that would lead the person assaulted to reasonably believe it to be a dangerous weapon, the newer version provides the four alternatives p reviously discussed. The fourt h scenario is at play in this case where neither Thomas nor Murphy saw defendant with a weapon and where defendant made no oral representation that he po ssessed a weapon. Defendant’s an alysis on this issue is flawed to the extent that he focuses on whether Thomas and Murphy had a r easonable belief that defendant was armed. Instead, the focus must be on whether defendant “ot herwise” represented that he was in possession of a dangerous weapon.

There was sufficient evidence to support defendant’s armed rob bery conviction where defendant “otherwise” represented that he was armed with a dang erous weapon. Thomas testified that defendant’s “hands were in his pocket kind of bu lged forward.” Thomas “wasn’t sure what was in those pockets. . . .I didn’t know if he had a weapon.” She acknowledged that she did not tell the 911 operator that defendant had indicated a weapon because she never saw a weapon and defendant never actua lly said he had a weapon. Inst ead, Thomas told the operator that “he had his hands in his shirt and I wasn’t taking any cha nces.” She also told the officers who responded to the scene that she “was not taking any chances . The hand motion in the front-5- pockets was enough for me to not know.” Thomas further acknowl edged that while it would not be unusual for an individual to have his hands in the front poc kets of his hoodie, defendant’s hands “were in but bulged out fur ther than normally would be.” Thomas actually put on the hoodie and demonstrated for the jury what defendant’s posture w as.
Murphy also believed that defendant was armed. Like Thomas, M urphy was able to demonstrate defendant’s posture for the jury. Murphy testified : “I’m not sure what it is, but I’m thinking a weapon” and that the robber’s hands were clearly “bu lging forward.” She added that it was not unusual to have your h ands in the pockets of the hoo die but “usually, you know, you’ll pull your pockets facing down in your hands, not up to your, yo u know, to your stomach area. Usually you just put your hands i n your pockets and they just l ay flat . . ..”

Therefore, although no weapon was displayed and defendant did not orally represent that he was armed, he “otherwise” represented that he was armed by p lacing his hands in his pockets and pushing them forward and there was sufficient evidence to s upport defendant’s armed robbery conviction.

B. EVIDENCE OF DEFENDANT’S 2006 ROBBERY

Defendant argues that his 2006 armed robbery of a 7-Eleven was irrelevant to the 2013 Halo Burger incident and eviden ce of the prior crime greatly pr ejudiced his case. We disagree.

This Court reviews for an abuse of discretion a trial court’s decision to admit other acts evidence. People v McGhee , 268 Mich App 600, 636; 709 NW2d 595(2005). A trial court doe s not abuse its discretion when it chooses an outcome within the range of reasonable and principled outcomes. People v Babcock , 469 Mich 247, 269; 666 NW2d 231 (2003).

Generally, character evidence cannot be used to show that a de fendant acted in conformity therewith because the re is a danger that a defendant will be convicted solely upon his history of misconduct rather tha n on his conduct in a particula r case. People v Starr , 457 Mich 490, 495; 577 NW2d 673 (1998). MRE 404(b) therefore provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Itmay, however, be admissible for other purposes, such as proof of motive, opportu nity, intent, preparation, scheme, plan, or s ystem in doing an act, knowledge , identity, or absence of mistake or accident when the same is material, wheth er such other crimes, wrongs, or acts are contemporaneous with, or prior or s ubsequent to the conduct at issue in the case.

“MRE 404(b) does not prohibit al l other-acts evidence that may give rise to an inference about the defendant’s character, but only that which is relevan t solely to the defendant’s character or criminal propensity.” People v Jackson , 498 Mich 246, 276; 869 NW2d 253 (internal quotation marks omitted). Generally, to be admissibl e under MRE 404(b), bad acts evidence (1) must be offered for a proper purpose, (2) must be relevant, and (3) must not have a probative value substantially out weighed by its potential for u nfair prejudice. People v Knox
, 469 Mich 502, 509; 674 NW2d 366 (2004).-6- A proper purpose is one other than establishing the defendant’ s character to show his propensity to commit the offense. People v Johnigan , 265 Mich App 463, 465; 696 NW2d 725 (2005). “Evidence is relevant if it has any tendency to make t he existence of a fact that is of consequence to the action more p robable or less probable than i t would be without the evidence.” People v Aldrich , 246 Mich App 101, 114; 631 NW2d 67 (2001), citing MRE 401. U nder this broad definition, evidence that i s useful in shedding light on any material point is admissible. Aldrich, 246 Mich App at 114 (emphasis added). However, evidence may be excluded if its probative value is substantiall y outweighed by the danger of un fair prejudice. MRE 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfai r prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless pr esentation of cumulative evidence.”

The prosecution sought to admit evidence of a 2006 incident at a 7-Eleven in which defendant allegedly indicated that he had a gun and that he wou ld shoot the clerk if she did not hand over the money. The prosecutor argued that the 7-Eleven i ncident was relevant to defendant’s intent “to give the impression that he was armed.” It was also evidence of his system in robbing retail establishments. The prosecution also believed that the incident bore a “signature” quality such that it was relevant to identity. The trial court ruled: “The prosecutor can use the 404 information about the previous robbery attempt to the extent where they want to show that [defendant] has an intent to threaten with a weapon. The identity information will not be used.”

At trial, Rachel Ann Springer then testified that, on August 8 , 2006, defendant came into the 7-Eleven and told Springer th at he wanted all of the money out of the register. Springer asked him if he was serious becau se she could not believe she w as being robbed. She did not see a weapon, but defendant told her “I will shoot you.”

The trial court did not abuse its discretion when it permitted the prosecution to present evidence of the 2006 7-Eleven robbery. The evidence was offere d for a proper purpose and was highly relevant. It was not offered for the sole purpose of sh owing that defendant was a bad person. Instead, it was offered to give context to the crime i tself. Defendant’s behavior demonstrated an intent to place his victims in fear that he was armed with a dangerous weapon. While the evidence was undoubtedly prejudicial, it cannot be sa id that the probative value of the evidence was substantially outweighed by the danger of unfair p rejudice, especially in light of defendant’s claim that he was not armed and that both Thomas an d Murphy were unreasonable in their fear that defendant was armed.

C. OTHER “IRRELEVANT” EVIDENCE

Defendant argues that the trial court erred when it permitted the prosecution to present evidence that defendant was at a Shell station just minutes bef ore the Halo Burger robbery because the jury would understand that defendant had attempted to rob the Shell station. Defendant also argues that the trial court erred in allowing th e prosecutor to question defendant’s former girlfriend about whether defendant’s mother had asked he r to lie at trial. We hold that the trial court did not abuse its discretion when it permitted the prosecution to present evidence that defendant was at the Shell station, but we agree with defendant that the trial court erred in-7- permitting the prosecutor to question defendant’s girlfriend ab out defendant’s mother’s alleged behavior. Nevertheless, we find the error harmless in light of the overwhelming evidence of defendant’s guilt.

The decision whether to admit evidence is within the trial cou rt’s discretion; this Court only reverses such decisions where there is an abuse of discretion. However, decisions r egarding the admission of evide nce frequently involve preliminary questions of law, e.g., whether a rule of e vidence or statute precludes admissibility of the evidence. This Court reviews que stions of law de novo. Accordingly, when such preliminary questions of law are a t issue, it must be borne in mind that it is an abuse of discretion to admit evi dence that is inadmissible as a matter of law. [ People v Lukity , 460 Mich 484, 488; 596 NW2d 607 (1999) (internal cit ations omitted).]

In general, “[a]ll relevant evidence is admissible” while “[e] vidence which is not relevant is not admissible.” MRE 402. As previously stated, “[e]videnc e is relevant if it has any tendency to make the existence of a fact that is of consequence to the action more probable or less probable than it would be without the evidence.” Aldrich , 246 Mich App at 114. Under this broad definition, evidence that i s useful in shedding light on any material point is admissible. Id. at 114. In determining admissib ility, “[t]he relationship of t he elements of the charge, the theories of admissibility, and the defenses asserted governs wh at is relevant and material. In order to be material, the fact must be within the range of liti gated matters in controversy.” People v Yost , 278 Mich App 341, 403; 749 NW2d 753 (2008) (internal citation s and quotation marks omitted). “Relevance involves two elements, materiality and probative value. Materiality refers to whether the fact was truly at issue.” People v Benton , 294 Mich App 191, 199; 817 NW2d 599 (2011) (internal quotation marks and citations omitted ).

However, even if a proponent of evidence can demonstrate its r elevance, the evidence may still be excluded if the probative value of the evidence is outweighed by the da nger of unfair prejudice. Yost , 278 Mich App at 407. “Unfair prejudice may exist where there is a danger that the evidence will be given undue or preemptive weight by the ju ry or where it would be inequitable to allow use of the evidence.” People v Blackston , 481 Mich 451, 462; 751 NW2d 408 (2008). “Assessing probative v alue against prejudicial eff ect requires a balancing of several factors, including . . . how directly the evidence tends to pro ve the fact for which it is offered, how essential the fact sought t o be proved is to the case, the potential for confusing or misleading the jury, and whether the fact can be proved in another manner without as many harmful collateral effects.” Id.

1. SHELL GAS STATION

Prior to trial, the prosecutor sought to introduce evidence th at just minutes before the Halo Burger robbery, defendant a ttempted to rob a nearby Shell station. In that incident, defendant allegedly wore a hoodie, was holding what appeared to be a knife, and demanded that the proprietor hand over money. When the proprietor reached un der the counter, defendant fled. A screwdriver was found nearby. The prosecutor offered the She ll station incident either as “res gestae” or MRE 404(b) evidence as evidence of plan and scheme and pattern of behavior, as well as proof of identity. The trial court ruled:-8- I don’t like this motion. I see a difficulty in it. The onlything that I know is is that in the Shell station incident, somebody whose image does not show up well on the video, walks in with an object that could be a knif e and tries to rob the station and then leaves. Eight and a half minutes later, some guy shows up at the Halo Burger with no weapon, acts like he has a weapon. And I d on’t know if they’re not entirely different c rimes, entirely different peopl e. I don’t necessarily see a common plan just because the clothing is similar. In one case, we know there’s something that resembles a weapon that’s waved around, and the other case there is not. I think tal k about the earlier events is un fairly prejudicial and it will not be allowed.

At a later hearing, the prosecu tor asked to introduce the Shel l incident as proof that defendant was in the area of the Halo Burger, without making an y reference to the attempted robbery. The trial court indicated that it did not “mind that” and that the prosecution “may say he was seen at the Shell station. They’re not going to talk ab out what his activities were. They’re not going to talk about s crewdrivers found in a path.”

At a later hearing, the prosecuto r advised the trial court tha t criminal charges had been filed against defendant for the Shell incident and requested th at the two cases be tried together. The trial court indicated that i t would “not try them together. The Court will deny the motion for consolidation. . . .I think they need to be tried separately be cause they’re different crimes, different victims, and different locations . . .”

At trial, Singh testified that an individual matching defendan t’s description was in his store at approximately 10:45 a.m. the day of the Halo Burger ro bbery. The Shell station maintained surveillance cameras and Singh cooperated in finding an image of the individual, which was later shown to Thomas and Murphy at the Halo Burger. There was a seven-mile distance between the Shell station and Halo Burger. The survei llance video from Shell was from approximately 10:45 a.m. and the rob bery at Halo Burger occurre d at 11:10 a.m.

Contrary to defendant’s assertions, the evidence was highly re levant. It not only placed defendant in the vicinity of the Halo Burger at the time of the robbery, but the Shell incident resulted in surveillance images that allowed the Halo Burger vi ctims (Thomas and Murphy) to identify the robber. It cannot b e said that the probative valu e of the evidence outweighed the danger of unfair prejudice, given t he limited use of the eviden ce.

2. KEEN’S TESTIMONY

At trial, Stephanie Keen testified that she and defendant had been in a romantic relationship for a few weeks before the robbery. She spent the night with him at his mother’s house the night before the robbery. When she woke up the next morning at 10:00 a.m., defendant was gone. Also missing was Keen’s sister’s car that Keen had been using while her sister was in Hawaii. Defendant was arrested while driving Kee n’s sister’s car. Keen identified the blue hoodie as one that defendant was wearing the night bef ore the robbery. The following exchange took place during Keen’s direct examination:-9- Q . Okay. Um, can you tell us whether or not at some point in ti me his mother called you and asked you to testify to something?

***

A . Yes.

Q . She did, okay. And what did his mother ask you to testify t o?

Defense counsel objected, arguing that it was hearsay evidence and was irrelevant because “[i]t’s what his mother may or may not have done.” Not addressing the relevancy issue , the trial court ruled: “It’s not being offered for the truth of the matter ass erted. We can go ahead with it.” The exchange continued:

Q . What did his mother ask you to do?

A . To say that I allowed him to use the car.

Q . Say that what?

A . To say I allowed him to use the car.

Q . Was that true?

A . No.

Q . Approximately when was that?

A . It was sometime back in January.

Q . Of this year?

A . Yes.

The evidence was totally irrele vant. Defendant was not on tri al for stealing the vehicle or unlawfully driving it away. The fact that he was arrested in K een’s sister’s car was not in dispute at trial. Nor was the testimony relevant to Keen’s cre dibility to show her “motivation not to lie,” as the prosecution argues. It is true that, “[i]f a w itness is offering relevant testimony, whether that witness is truthfully and accurately testifying is itself relevant because it affects the probability of the existence of a consequential fact,” People v Mills , 450 Mich 61, 72; 537 NW2d 909, modified 450 Mich 1212 (1995), but it is u nclear how the foregoing evid ence touched on anything other than defendant’s mother’s potential wrong-doing.

Nevertheless, “[a] preserved error in the admission of evidenc e does not warrant reversal unless after an examination of t he entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative.” People v Burns , 494 Mich 104, 110; 832 NW2d 738 (2013) (internal quotation marks omitted). “ The reviewing court must examine the nature of the error and assess its effect in light of the weight and strength of the untainted evidence.” Phillips , 469 Mich at 397 (internal quotations marks omitted). Given t he-10- overwhelming evidence that defendant committed the armed robber y, it cannot be said that this bit of evidence was outcome det erminative. Both Thomas and Mur phy positively identified defendant as the robber. He was driving a car that contained a hoodie matching th e description Thomas had given. There were six $5 bills and 35 $1 bills, amo ng other currency that matched the amount taken from Halo Burger. Because of the overwhelming evidence against defendant, any error in admitting the evidence was harmless.

D. DEFENDANT’S STANDARD 4 BRIEF

Defendant has filed Standard 4 brief pursuant to Administrativ e Order 2004–6, Standard 4. However, defendant’s brief in bereft of citations to the re cord or any analysis. “An appellant may not merely announce his position and leave it to this Courtto discover and rationalize the basis for his claims, nor may he give only cursory treatment wi th little or no citation of supporting authority.” People v Kelly , 231 Mich App 627, 640-641; 588 NW2d 480 (1998). “The appellant himself must first adequately prime the pump; on ly then does the appellate well begin to flow. Failure to brief a question on appeal is tantam ount to abandoning it.” Mitcham v City of Detroit , 355 Mich 182, 203; 94 NW2d 388 (1959) (in ternal citations omi tted).

Nevertheless, we have thoroughly reviewed each of the issues r aised. Save one, there is no merit to any of them. The one issue that deserves at least a brief discussion is defendant’s claim that the prosecutor imperm issibly shifted the burden of p roof to defendant. We find some merit to this claim as demonstrated by the following exchange b etween the prosecutor and the lead detective:

Q . Okay, now we’ve heard about [defense counsel’s] position tha t the prosecution has the burden of proof and . . .it’s totally accur ate, right?

A . Yes.

Q . Okay. Beyond a doubt that’s fa ir and reasonable, right?

A . Correct.

Q . Okay. But um, in your experience as a lawyer (sic), defense attorneys bring forth evidence that favors their client when they have it ?

A . Absolutely.

Q . Now in May of 2013, who repre sented Mr. Henry?

A . Mr. Scott.

Q . And at any time between that date and April 1 st , 2014, okay, 12 1⁄2 months, was there any request f or fingerprint analysis?

A . No.

MR. SCOTT: Judge, may we approach again?-11- (At 12:41 p.m., Bench conference held)

MR. SCOTT: He’s shifting the burden. I’m sorry, he’s shiftin g the burden, Judge.

MR. WHITESMAN: I did not.

MR. SCOTT: I don’t have to request anything.

MR. WHITESMAN: He doesn’t.

MR. SCOTT: The one thing that I had to request is, is I got s ome exculpatory evidence.

MR. WHITESMAN: He doesn’t.

THE COURT: I’m not going to letyou go any further with this.

“A prosecutor may not imply . . . that the defendant must prov e something or present a reasonable explanation for damaging evidence because such an ar gument tends to shift the burden of proof.” People v Fyda , 288 Mich App 446, 463-464; 793 NW2d 712 (2010). The prosecution appeared to attempt to shift the burden of proof by intimating that defendant could have come forward with exculpato ry evidence. However, while th e attempt to shift the burden of proof was improper, it does not appear that defendant was de nied a fair trial. The trial court immediately put a stop to that line of questioning. Additional ly, following closing argument, the trial court instructed that defendant was presumed innocent and that defendant was not required to prove his innocence: “The pro secutor has the burden of prov ing to you beyond a reasonable doubt each and every one of those elements with evidence beyond a reasonable doubt. Of course the Defendant doesn’t have to prove a thing because you still p resume that he’s innocent.” Because jurors are presumed to follow their instructions, People v Abraham , 256 Mich App 265, 279; 662 NW2d 836 (2003), any error in the prosecution’s statem ents was harmless.

Affirmed.

/s/ Jane M. Beckering /s/ Donald S. Owens /s/ Kirsten Frank Kelly